Legal Trends: Foolish Consistency

“A foolish consistency is the hobgoblin of little minds....With consistency a great soul has simply nothing to do. He may as well concern himself with his shadow on the wall.”

— Ralph Waldo Emerson, “Self-Reliance”

Is consistency something you value highly? Do you consider yourself a person who acts consistently? For most of us, the answer to both of these questions is painfully obvious. Most people do not list a proclivity toward inconsistency as one of their stellar attributes. In human resource management, in particular, consistency is bred in the professional bone and is often seen as a legal necessity.

But wait! Do you also think it is important to treat people as individuals? If so, do you try to accommodate your employees’ individual needs?

Again, most of us would answer in the affirmative. One of the reasons union-free employers cherish that status is so they can consider individual differences when making workplace decisions.

So, here’s the clincher: As an HR professional, how do you treat people as individuals while also treating them consistently?

There’s no question that there is an inherent clash between these core values, and working within that tension sometimes requires big-picture thinking, not rigid application of the literal language of the policy manual. The simple truth is that consistent decisionmaking is easier than individualized decision-making. So rules sometimes supplant judgment. While such an approach is easier than making decisions on a case-by-case basis, it sometimes results in foolish consistency.

Let’s consider four scenarios involving the conflict between consistent application of policies and accommodation of individual circumstances; let’s also look at ways to minimize the legal risk of embracing prudent inconsistency.

The Imperfect Applicant

You are trying to fill a human resource manager position. One of the requirements listed in the job description is that the successful applicant must have at least five years’ HR experience.

Upon reviewing the resumes you receive, you notice that one applicant, Wendy, has worked for the last three years for the U.S. Department of Labor’s (DOL) Wage and Hour Division. This is particularly appealing to you because one of the top priorities for your new hire will be helping ensure compliance with Fair Labor Standards Act regulations.

There is, however, a problem: Wendy has only four years’ HR experience, and your job description calls for five. Can you interview and hire Wendy regardless? In other words, can you apply your job requirements inconsistently?

Risk analysis: In analyzing this question, it is important to distinguish between doing something for an unlawful reason and doing something for a lawful reason that may have legal implications.

Look at it this way: Not hiring someone because she is pregnant is illegal by definition. But declining to hire a visibly pregnant woman for legitimate business reasons unrelated to her pregnancy is not unlawful. However, your stated reasons may be challenged as a pretext for pregnancy bias, so that gives the transaction legal implications.

For both legal and ethical reasons, HR professionals should oppose any manager’s objectively unlawful intentions. But, where lawfully motivated actions involve some legal risk, HR has more flexibility in the counseling and decision-making process.

With that in mind, let’s go back to Wendy. It is not unlawful to hire someone who does not meet your established job requirements, but it does carry legal risks.

For example, qualified applicants who are not hired could claim that they are more qualified than the person selected. If an applicant making this claim is of a different race, sex, national origin, etc., from the individual who is hired, that applicant could meet the necessary threshold to allege unlawful discrimination. Even those who are not fully qualified for the job could claim that they too should have been considered because their own special experiences or qualifications compensated for their lack of HR experience.

Employers usually have a solid defense when applicants who file discrimination claims do not meet the objective requirements of the job, but it’s hard for employers to rely on that defense when they deviate from their own requirements listed in the job description.

In response to these risks, you may be tempted not to hire Wendy. While this avoids the legal risk, it creates a business risk—the loss of an applicant with unique experience and extraordinary potential. So, as is often the case, it becomes a question of managing, rather than avoiding, risk.

In the risk management analysis, one factor to consider is that applicants are far less likely to file claims than are employees.

Moreover, you can minimize the legal risk by documenting the basis for the exception you are making by interviewing and possibly hiring Wendy. Specifically, you should prepare a contemporaneous file memo stating that, in general, you considered only applicants with five years’ human resource experience, but you considered hiring Wendy because of her unique DOL experience and the employer’s wage-and-hour compliance goal.

Such a memo could be very helpful in staving off suits. For example, a male employee with seven years of HR experience who is not hired for the job might later file a claim alleging that Wendy was hired because she is a “she,” and he was rejected because he is a “he.” The file memo, while not ironclad, will establish a viable defense that the difference in treatment was due to Wendy’s government experience—not a discriminatory motive.

Admittedly, if you follow this course of action, you will have acted inconsistently, but that does not mean you acted illegally or imprudently. To the contrary, allowing another employer to hire Wendy could turn out to be foolishly consistent, a lesson you might learn only when defending wage-and-hour claims that Wendy might have helped you to avoid.

I Want To Work at Home

Steve, a young white male, is one of your best sales employees. For the past five years, he has consistently met his sales quotas, and his customers adore him. Steve has two young kids in school, and his wife travels a lot for work. He wants to telecommute two days a week so he can take his kids to school and be there when they come home.

Your company does not have a telecommuting policy and has refused telecommuting requests from other employees. Steve’s supervisor tells you that if you do not make an exception for Steve, you will lose him and possibly hundreds of thousands of relationship dollars.

Others see legal red flags. What about the woman and man of color whose requests to telecommute were denied? What if you later deny the requests of older employees to telecommute? Granting an employee’s request to telecommute also raises the issue of whether working at the employer’s premises is essential to the job. Does allowing Steve to work at home open the door for others to argue that telecommuting is a reasonable accommodation for their disabilities?

Risk analysis: If your only goal is to avoid legal risk, then you should deny Steve’s request. However, if you are concerned about the loss of his talent, customer relationships and related revenue, the goal is to make a defensible exception to your policy—in other words, to be prudently inconsistent.

Under these circumstances, you should document why Steve’s position may lend itself to telecommuting, contrasting it to other positions (such as support, supervisory or production jobs) that require employees to work on-site. If a discrimination claim arises or if an employee requests telecommuting as an accommodation, the documentation of Steve’s situation can be used to explain or support your decision.

But there’s another issue: If you don’t trust someone, it is not a good idea to let that person telecommute. So, in addition to the particulars of Steve’s job, a decision to allow Steve to telecommute may involve a judgment about his personal qualities.

While trust is inherently subjective, it can be expressed in more objective terms. For example, you could document that, in approving Steve’s request, you considered not only his position, but also the fact that he has significant tenure, has performed well when entrusted with significant tasks and has no disciplinary record. This documentation could further provide that the company generally will deny permission to telecommute to employees who have few years of service, no history of good performance or a record of formal disciplinary action.

Complete your documentation before the next person asks to telecommute. That way, you have captured your thought process before you know what the comparator looks like. You can’t discriminate based on what you do not know.

Even if you follow these steps, you still may get a claim. But you should balance the cost of the claim against the income protected by retaining Steve. (Of course, this assumes that your purpose is legitimate. If an employer’s purpose is unlawful, this kind of cost-benefit analysis would be highly inappropriate.)

I Hate You, But Don’t Fire Me

Recently, your organization completed a large acquisition. Working more than 80 hours per week for almost six months, David was the company’s point person on the acquisition. In a managers’ meeting, you heap praise on David for his invaluable accomplishment. You also mention that another acquisition is in the works and that you may be calling on him “to do his magic again.”

On hearing your words, David loses it. He lashes back at you by screaming, “I’m not going to work on another [expletive] deal. Because of this [expletive] company, I don’t have a life. I’m tired of making you look good. You are [expletive] abusive. I hate you.”

Risk analysis: Under ordinary circumstances, David’s reaction would be cause for immediate discharge. However, because of the extenuating circumstances, the employer may be tempted not to discharge David. But if you discharge someone of a different race, color or religion for substantially less serious conduct, aren’t you buying an Equal Employment Opportunity (EEO) claim?

When we terminate employees, we often ask what are the risks in terminating them. The question is necessary but not sufficient. We also need to ask what are the risks in not terminating an individual. Inconsistencies in the discharge process often arise out of what managers don’t do, as much as they arise from what managers do. Today’s nontermination becomes the comparator for yesterday’s or tomorrow’s termination of someone for the same or similar reasons.

Accordingly, not terminating David could set up the company for legal risk. But terminating him, while avoiding legal risk, entails business risk associated with the loss of his talent.

If consistency is the only option, then termination should follow. Fortunately, however, the law is not this rigid, nor should we be. The law permits employers to make distinctions based on legitimate factors. A similar response is not required in dissimilar circumstances.

If you wish to retain David despite his outburst, have the following conversation with him (which, of course, you should confirm in writing):

Ordinarily your behavior would be cause for immediate discharge.

However, there are special circumstances: your more than 15 years’ experience, your consistently stellar performance, and your integral and very time-consuming role in the recently completed acquisition.

In light of these special circumstances, we are issuing you a final warning rather than discharging you.

If, a few months later, an employee of a different race or national origin is let go for privately swearing at his supervisor, and the employee files a discrimination charge alleging that what David did was worse—public vs. private swearing— but was treated more leniently, your defense is that the difference in treatment was due not to race or national origin, but rather to the nondiscriminatory mitigating circumstances contemporaneously documented in David’s final warning. There’s no guarantee, of course, but the fact that nondiscriminatory factors influenced your business decision should carry the day.

Unfortunately, if a union is involved, you may not have the same discretion. Unions usually equate fairness with sameness. If you allow David to remain employed, you may have to allow every employee one opportunity to upbraid you publicly. To avoid that constraint, you may need an agreement with the union that disciplining David, rather than terminating him, will not constitute precedent with regard to David or any other employee. Otherwise, the union’s vigilant policing of the collective bargaining agreement may consign you to a spate of foolish consistency.

Say How Good I Am

Diane, an exceptional employee, is relocating. She asks you to give her a substantive reference to help her get a job in a geographical area where she has no contacts.

Here’s the problem: You have a policy of providing only neutral references, confirming only dates of employment, position held and salary.

Risk analysis: Aside from the issue of whether your general policy might be too risk averse, you want to make an exception for Diane. That raises potential EEO concerns involving similarly situated employees for whom you have not given a substantive reference.

Defamation is another concern. If you give Diane a substantive reference, does that imply that another employee’s neutral reference is actually negative?

In many jurisdictions, there is a potential claim for defamation by innuendo or implication. However, such claims are relatively rare in contrast to claims of defamation that is expressly stated. Moreover, the risk of a claim of defamation by innuendo or implication should exist only if the applicant who does not get a substantive reference applies for a job with the same employer as Diane. Otherwise, there is no comparison— substantive reference vs. no substantive reference—from which the prospective employer might draw a defamatory implication.

You can substantially mitigate the risk of providing Diane with a substantive reference by stating in the reference that the employer generally does not provide substantive references, but it is making an exception only because Diane was an “extraordinary employee.” The only negative implication that could arise from refraining to give a substantive reference to another worker is that this other individual was not “extraordinary.” It’s hard to imagine a judge concluding that merely implying that an employee was “not extraordinary” would be defamatory.

By taking the path of inconsistency, you help out a good employee who may be a business influencer in the future. In short, employers that provide substantive references may be more likely to get the same in return.

Conclusion

Making exceptions should be the exception and not the rule. Otherwise, you end up with chaos. These examples are intended only to get you thinking. Even if you make exceptions sparingly and prudently, you may end up with a few claims.

But if your documentation is contemporaneous, clear and...well...consistent, you should be in a position to defend your actions successfully. And if you have used good business judgment, the benefits to your organization should outweigh the cost of dealing with any claims that do arise.

Editor’s note: This article should not be construed as legal advice or as pertaining to specific factual situations.

Jonathan A. Segal, Esq., a contributing editor of HR Magazine, is a partner in Philadelphia in the Employment Services Group of Wolf, Block, Schorr and Solis-Cohen LLP. His practice concentrates on counseling clients, developing policies and strategic plans, and training managers to avoid litigation and unionization.